Dale Drinkwater v. Charles Larson ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 17, 2019
Decided January 6, 2020
Before
KENNETH F. RIPPLE, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-1876
DALE D. DRINKWATER, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 16-cv-134-wmc
CHARLES LARSON, et al., William M. Conley,
Defendants-Appellees. Judge.
ORDER
Dale Drinkwater, a former Wisconsin prisoner, has a history of bilateral hip
arthroplasty and chronic hip pain. While he was incarcerated, prison doctors disagreed
over his need for surgery on one hip and denied his requests for outside consultations.
After he was released, he sued six prison medical professionals for deliberate
indifference toward his need for hip surgery. The district court granted the defendants’
motion for summary judgment. On appeal Drinkwater pursues his deliberate-
indifference claims against only two prison doctors—Drs. David Burnett and Charles
Larson. Because Drinkwater has not adduced evidence for a reasonable jury to find that
either was indifferent to his serious medical needs, we affirm the district court’s
judgment.
No. 19-1876 Page 2
I. Background
Drinkwater’s claims focus on events that occurred in 2010 and 2011, but his
earlier medical treatment provides context. Now in his mid-50s, Drinkwater had both
hips replaced in the early 1990s. In August 2009 he had an appointment with an
orthopedic surgeon, who noted significant wear to Drinkwater’s left hip, advised that
he might need revision surgery, and recommended that he see a hip specialist.1 Two
months later he began his imprisonment at Fox Lake Correctional Institution.
That December Drinkwater expressed concerns about possible pelvic
discontinuity (a distinct form of bone loss that is typically a chronic condition in failed
total hip replacements) to Dr. Richard Illgen, a second orthopedic physician from the
University of Wisconsin. Dr. Illgen noted that while Drinkwater would need to undergo
revision surgery at some point in the future, he did not believe that surgery was
appropriate at the time because he saw no evidence of pelvic discontinuity, mechanical
failure, or hip dislocation. Dissatisfied with Dr. Illgen’s diagnosis and reluctance to
recommend surgery, Drinkwater refused to go to his follow-up appointment in
February.
In May 2010 Drinkwater slipped in the prison shower and injured his hip. He
was transported to a nearby emergency room where x-rays revealed a broken screw in
his hip but otherwise no sign of a fracture. The emergency-room doctor diagnosed a left
hip contusion and recommended that Drinkwater follow up with Dr. Illgen. The doctor
recorded his conversation with Drinkwater, highlighting Drinkwater’s express refusal
to see any University of Wisconsin orthopedic surgeon. Drinkwater was returned to the
prison and placed on pain management.
Over the next few months, Drinkwater was examined numerous times by
Dr. Charles Larson, a prison physician. At an appointment in June, Drinkwater told
Dr. Larson that he disagreed with Dr. Illgen’s plan of care and wanted to have surgery
at a facility other than the University of Wisconsin. Dr. Larson agreed to request
permission for Drinkwater to be sent to Mayo Clinic or Froedtert Hospital for a second
opinion and possible surgery. (The prison has a contract with the University of
Wisconsin to provide medical services, so prisoners are generally allowed to seek care
at Mayo or Froedtert only if a University of Wisconsin doctor believes that he is not
1Revision surgery is performed to repair an artificial hip that has deteriorated
over time due to normal wear and tear.
No. 19-1876 Page 3
capable of performing surgery.) On the request form, Dr. Larson noted Dr. Illgen’s
opinion that surgery was premature and Drinkwater’s belief that a delay in surgery
would harm his long-term outcome, but Dr. Larson did not opine on the condition of
Drinkwater’s hip. Dr. David Burnett, the prison doctor responsible for reviewing
prisoner requests for outside medical treatment, denied the request without
explanation.
After learning that his request to see a Mayo or Froedtert physician was denied,
Drinkwater asked Dr. Larson to correct his prison medical records. Apparently
Drinkwater believed that his medical records reflected his refusal to see any University
of Wisconsin doctor. He wanted his records corrected to reflect that he was refusing
treatment from only Dr. Illgen. Dr. Larson denied Drinkwater’s request, deeming
Drinkwater’s records accurate and complete.
Dr. Larson saw Drinkwater in September 2010, January 2011, and June 2011 for
chronic pain management. At the first two appointments, Drinkwater did not report
any changes in his hip functionality or an increase in pain. At the last appointment,
Drinkwater refused to let Dr. Larson examine him and voiced frustration with the care
that he was receiving. Drinkwater was released from prison in September 2011.
Five years later, Drinkwater sued Drs. Larson and Burnett (and four other
medical professionals, whom Drinkwater has dropped from the case) for showing
deliberate indifference toward his serious medical needs by not scheduling him for hip
surgery after his fall in the shower. The defendants moved for summary judgment,
which the district court granted. Regarding Dr. Larson, the judge concluded that no
reasonable inference of deliberate indifference could be made because he did not
deviate from an accepted standard of care when he provided Drinkwater with medical
treatment and tried to accommodate Drinkwater’s only documented request for referral
to an outside specialist. Turning to Dr. Burnett, the judge found that the evidence
established that the doctor reasonably relied on Dr. Illgen’s opinion that surgery was
unwarranted at the time, so a reasonable jury could not find that he acted with
deliberate indifference when denying Drinkwater’s request to receive a surgical
consultation from the Mayo Clinic or Froedtert Hospital.
II. Discussion
To survive summary judgment Drinkwater needed to present evidence allowing
a reasonable jury to conclude that he suffered from an objectively serious medical
No. 19-1876 Page 4
condition and that Drs. Larson and Burnett knew of and deliberately disregarded a
substantial risk of harm. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The parties do
not dispute that Drinkwater’s hip condition was objectively serious. Instead,
Drinkwater seeks to show that Drs. Larson and Burnett knew that their decisions would
effectively prevent him from receiving any medical care. In support he points to
Dr. Burnett’s denial of his request to be seen by an outside specialist from Mayo or
Froedtert, coupled with Dr. Larson’s refusal to amend his medical records to reflect that
he did not refuse treatment from all University of Wisconsin doctors.
Following Drinkwater’s lead, we first turn to Dr. Burnett. Drinkwater contends
that Dr. Burnett denied his request to see an outside specialist based only on the
contract for medical services entered with the University of Wisconsin. Because no
medical judgment was involved, he argues, this denial necessarily constitutes deliberate
indifference. But no reasonable jury could find that Dr. Burnett was deliberately
indifferent. When prison doctors act as administrators instead of treating physicians, as
Dr. Burnett did, they are entitled to rely on the judgment of the doctors who are treating
the inmate. Rasho v. Elyea, 856 F.3d 469, 478–79 (7th Cir. 2017). Drinkwater asked to be
seen at a facility outside the University of Wisconsin system because he disagreed with
Dr. Illgen’s diagnosis, but he presented no evidence that Dr. Burnett knew that
Dr. Illgen’s medical opinions were incorrect (if that were even the case); that treatment
from another University of Wisconsin physician could not have sufficiently addressed
his medical needs; or that refusing Drinkwater’s request to schedule an appointment at
Mayo or Froedtert would cause Drinkwater not to receive any surgical intervention (if
even needed). “Disagreement between a prisoner and his doctor, or even between two
medical professionals, about the proper course of treatment generally is insufficient, by
itself, to establish an Eighth Amendment violation.” Pyles v. Fahim, 771 F.3d 403, 409
(7th Cir. 2014). Further, prison inmates are not entitled to demand specific care.
See Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011). No reasonable jury could
conclude that Dr. Burnett was deliberately indifferent when denying Drinkwater’s
request.
As for Dr. Larson, Drinkwater argues that the doctor acted with deliberate
indifference by refusing to amend his medical records to correct his purported refusal to
be seen by a University of Wisconsin physician. According to Drinkwater, Dr. Larson
must have known that his refusal would effectively preclude him from being seen by
any physician—whether from Mayo, Froedtert, or the University of Wisconsin.
No. 19-1876 Page 5
A reasonable jury could not conclude that Dr. Larson was deliberately
indifferent. To be liable, Dr. Larson must have personally caused Drinkwater not to
receive treatment. See Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 964–65
(7th Cir. 2019); Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005). But
Dr. Larson’s decision not to amend Drinkwater’s medical records—the utility of which
is unclear and, in any event, was deemed by the doctor to be unnecessary—did not
deprive Drinkwater of treatment. After Drinkwater’s request to see a specialist from
Mayo or Froedtert was denied, he apparently never again asked for an appointment
with an outside specialist (or at least Dr. Larson never denied such a request). If
Drinkwater made no such request, Dr. Larson would have no reason to schedule an
appointment for him to see a specialist. There simply is no evidence linking
Dr. Larson’s refusal to amend Drinkwater’s medical records with Drinkwater not
receiving surgery or further outside evaluation. See Walker, 940 F.3d at 965–66. A
reasonable jury, therefore, could not find that Dr. Larson was deliberately indifferent by
rejecting Drinkwater’s request to amend his records.
AFFIRMED